The definition of common law spouse varies from province to province and within different contexts. The case of Chapman v. Treakle¹ examines the definition of “common law spouse” and the determination of a “marriage-like relationship” under intestacy legislation in British Columbia. While in Ontario common law spouses do not have the same statutory rights as married spouses under intestacy legislation, this is not true in British Columbia, where both common law and married spouses have the same statutory rights on intestacy. However, unmarried spouses must first show that they were indeed “common law spouses” under the legislation.

The Facts

Ms. Chapman and the deceased began living together in 1981 in a subsidized apartment complex, where the deceased was employed as the building manager. In 2002, Ms. Chapman secured a well-paying job and thought that their rent would no longer be subsidized so she asked that her name be taken off the lease, even though she testified that she continued to live in the apartment with the deceased.

Around the same time, Ms. Chapman’s daughter became severely ill and Ms. Chapman began spending nights at her daughter’s house to care for her and for her granddaughter. Ms. Chapman testified that she still spent the majority of her time at the apartment with the deceased and she continued in a spousal relationship with him until he died in 2012. They shared a bed and had an intimate relationship and maintained sexual fidelity to one another. They communicated their feelings to each other and exchanged gifts. While they maintained separate bank accounts they pooled their money to meet their combined living expenses. The deceased had proposed to her several times over the years but for various reasons a wedding never took place.

When the deceased died intestate and without children of his own, Ms. Chapman brought a claim declaring that she was his sole heir under the law of intestate succession established by the Estate Administration Act, R.S.B.C. 1996, c. 122 (the “EAA”, which has now been repealed but was in force at the time of death). The deceased’s sister defended the claim arguing that the Ms. Chapman stopped living with the deceased in 2002 and that they were not in a common law relationship.

The Legislation

Under the EAA, a common law spouse includes a person who has lived and cohabited with another person in a marriage-like relationship for a period of at least 2 years immediately before the other person’s death.

Justice Ballance canvassed the leading cases in B.C. on the interpretation of “marriage-like” relationship within this definition and noted that there is “no checklist of characteristics” determinative of a ‘marriage-like’ relationship as spousal relationships are many and varied.² Some blend their finances and others keep their property and finances completely separate; for some couples sexual relations are very important, while others do not share beds; some couples are affectionate and demonstrative while others do not engage in public affection, etc.³ The leading cases also provided that the “lynchpin of the analysis as to the status of unmarried persons is whether the couple considered themselves committed to the lifelong support of one another”.⁴ Also that where the assessment of each party’s subjective intention was elusive, reliance on an evaluation of objective indicators may well be necessary.

Justice Balance heard testimony from several witnesses regarding Ms. Chapman’s and the deceased’s relationship, including from relatives and neighbours. The court was also presented with several holograph wills that did not comply with the formalities of execution. Each of these wills, dating from 2007 to 2010, referred to Ms. Chapman as the deceased’s “spouse” “wife” or “companion” and left everything to her.

The court found that after 2002 Ms. Chapman spent less time at the deceased’s apartment, since she had to care for her sick daughter, but that this time away from the deceased, did not stop the court from finding that the “preponderance of evidence” demonstrated that they were in a committed lifelong relationship.⁵ Some of the evidentiary considerations included:

• They continued to play bingo and enjoy outings together;
•  Shared meals and travelled together;
• Helped raise Ms. Chapman’s granddaughter together;
• The holograph wills, while not valid wills, were evidence of an on-going spousal relationship, and the deceased’s intention in relation to his relationship with Ms. Chapman;
• While the plaintiff might have slept at her daughters house on some nights the Court concluded that this did not reflect a lack of fidelity or diminished devotion to the deceased; and
• The fact that they maintained separate bank accounts was not determinative that their relationship had ended.

The Court concluded that Ms. Chapman was the deceased’s common law spouse under the EAA and therefore inherited the entirety of his estate.

Conclusion

This case echoes the many interesting and unique circumstances that courts will consider in finding a spousal relationship to have existed –indeed there is an increase in decisions in this area. Relationships do not have to be conventional to be tantamount to spousal relationships. The law in this area relevant to what factors are considered to determine a spousal relationship continues to expand. This decision of course also serves as a reminder of the importance of having a validly executed Will. Had the deceased consulted an estate planning lawyer to verify whether his holograph wills were indeed valid, much of this turmoil and difficulty that his spouse of 31 years had to face to have her rights recognized could have been avoided.

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1. 2014 BCSC 2127.

2. 2014 BCSC 2127 at para. 22.

3. 2014 BCSC 2127 at para. 22 citing Austin v. Goerz 2007 BCCA 586 at para.58.

4. 2014 BCSC 2127 at para. 20.

5. 2014 BCSC 2127 at para. 100.